THE PENDULUM IN FEDERAL SENTENCING CAN ALSO SWING TOWARD PREDICTABILITY: A RENEWED ROLE FOR BINDING PLEA AGREEMENTS POST-BOOKER. Wes R.

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1 THE PENDULUM IN FEDERAL SENTENCING CAN ALSO SWING TOWARD PREDICTABILITY: A RENEWED ROLE FOR BINDING PLEA AGREEMENTS POST-BOOKER Wes R. Porter I. INTRODUCTION: THE CONVERSATION A. The Guidelines Conversation B. The Post-Booker Conversation II. FEDERAL SENTENCING POLICY AND THE EVOLVING LANDSCAPE A. Before the Mandatory Guidelines B. Uniformity and Proportionality Under the Mandatory Guidelines C. Predictability and Informed Decision Making D. One Size Fits All Did Not Fit Limited Judicial Role in the Plea and Sentence Federal System Prosecutorial Discretion Lack of Individualization at Sentencing III. MANDATORY GUIDELINES EFFECTIVELY REPLACED BINDING PLEA AGREEMENTS A. Binding Plea Agreements Under Federal Rule of Criminal Procedure 11(c)(1)(C) B. Binding Plea Agreements Meaningless Under the Guidelines IV. THE GAME CHANGER OF UNITED STATES V. BOOKER A. The Gradual Constitutional Challenge to Judicial Fact Finding at Sentencing B. Incongruent Remedy in Booker Associate Professor of Law, Golden Gate University School of Law, San Francisco, California. Thank you to Golden Gate University School of Law for its financial support of my scholarship. For their thoughtful review and comments on earlier drafts, thank you to Professor Eric Christiansen, Michael Purpura, Jonathan Lopez, and Emily A.S.R. Porter. Thank you to GGU litigation graduate fellow Erik Knuppel for his research assistance. 469

2 470 WILLIAM MITCHELL LAW REVIEW [Vol. 37:2 C. The Post-Booker Effect The Return of Judicial Discretion at Sentencing The Statistical Benefit to Defendants Liberated Federal Prosecutors V. RENEWED ROLE FOR BINDING PLEA AGREEMENTS A. The Guise of Continued Uniformity Post-Booker B. The Potential Impact of Binding Plea Agreements Post- Booker C. Binding Plea Agreements in Enron Prosecution of the NatWest D. The Downside to Binding Plea Agreements VI. PROPOSED CHANGES TO EMBRACE BINDING PLEA AGREEMENTS A. Proposed Revisions to Rule B. Proposed Amendment to the Applicable Guidelines Policy Statements C. DOJ Protocol and Attorney General Memoranda D. Proposed Local Rule E. Proposed Plea Agreement Language VII. CONCLUSION I. INTRODUCTION: THE CONVERSATION A. The Guidelines Conversation Defendant: What am I looking at if I plead guilty? Counsel: The Guideline range is thirty-three to forty-one months. 1 There are no motions for a lower sentence in your case. We will argue for the low end of the Guidelines, thirty-three months, the government will likely ask for the middle, and the judge will likely impose something in between. 1. For illustrative purposes, the common federal offense of bank robbery may result in an applicable Guideline range of thirty-three to forty-one months. U.S. SENTENCING COMM N, GUIDELINES MANUAL 2B3.1 (2009), available at This hypothetical assumes a base offense level of twenty, a two-level sentencing enhancement for financial institution, and a three-level reduction for acceptance of responsibility for a total offense level of nineteen. Assuming a criminal history of Category II results in a Guideline range of thirty-three to forty-one months. See id. 5.A ( Sentencing Table).

3 2011] THE PENDULUM IN FEDERAL SENTENCING 471 B. The Post-Booker Conversation Defendant: What am I looking at if I plead guilty? Counsel: It is difficult to say. The law that applies to sentencing in federal court changed dramatically in The Guidelines dictated sentencing and required the court to sentence within a range, here thirty-three to forty-one months. Now, the judge could sentence you to anywhere from no jail to the maximum of twenty years. 2 Defendant: So what changed? Counsel: Today, the Guidelines are just advisory. The court must still calculate and start from thirty-three to fortyone months. The court must still consider any motions to lower that sentence called downward departures, which don t apply in your case. The court then considers some general factors about sentencing and imposes a sentence that is reasonable. Defendant: Then the judge will give me something within the thirty-three to forty-one months? Counsel: Before 2005, my answer would have been yes. Today, it varies depending on several factors: the facts of the case, your personal history and circumstances, the goals of sentencing, and even which judge we draw. The good news is judges are sentencing defendants to terms below the guideline range in more than forty percent of cases. Defendant: That s good. I might get less than the thirty-three months then. Counsel: Well, maybe but maybe not. That more than forty percent statistic may be misleading, because it includes cases when the government files motions for lower sentences and cases when the defense has a viable motion for a lower sentence. We don t have either in your case. Further, based on the process the court must go 2. In the same example as supra note 1, the bank robbery carries a statutory maximum of twenty years. See 18 U.S.C. 2113(a) (2006). Again, with the factors outlined above in supra note 1, the offense resulted in an applicable Guideline range of thirty-three to forty-one months. See U.S. SENTENCING COMM N, supra note 1, 2B3.1, 5.A.

4 472 WILLIAM MITCHELL LAW REVIEW [Vol. 37:2 through, there are reasons that may cause the judge to go below the range, within the range, or possibly, although not likely, above the range. Defendant: It sounds like I won t know much, and you can t predict much, even if I decide to plead guilty. I won t really know anything more about my future until the day of sentencing. Counsel: I m afraid that is the state of law in federal sentencing right now. Defendant: For my own piece of mind, I would plead guilty and agree to two and half years right now. Can t you just ask the prosecutor if she would agree to that? Prior to the era of the United States Sentencing Guidelines (the Guidelines), 3 federal prosecutors and defendants entered into plea agreements that included a specific sentence or sentencing range. 4 Binding plea agreements served an important function of counterbalancing the vast judicial discretion at sentencing. 5 The federal judiciary enjoyed wide discretion in imposing a sentence; 6 the government s and defendant s freedom to contract for an appropriate sentence mirrored that discretion. In 1987, the United States Sentencing Commission (the Commission), implemented the Guidelines. 7 Congress mandated 3. U.S. SENTENCING COMM N, GUIDELINES MANUAL (1987) (amended 1989). The era of the mandatory Guidelines is defined as November 1, 1987, the date the Guidelines became effective, to January 12, 2005, the date of the Supreme Court s decision in United States v. Booker, 543 U.S. 220 (2005). 4. FED. R. CRIM. P. 11(c)(1)(C). 5. There are several reported pre-guidelines, binding plea agreement cases. See, e.g., United States v. Kamer, 781 F.2d 1380 (9th Cir. 1986); United States v. Burruezo, 704 F.2d 33 (2d Cir. 1983); United States v. Blackwell, 694 F.2d 1325 (D.C. Cir. 1982). In these reported cases, the defendant thereafter challenged a portion of the sentence imposed pursuant to the binding plea agreement. It is important to note that nearly all binding plea agreements present neither an issue for appeal nor a need for written opinion at the district court level. 6. See Michael Fisher, Striking a Balance: The Need to Temper Judicial Discretion Against a Background of Legislative Interest in Federal Sentencing, 46 DUQ. L. REV. 65, (2007) (outlining the historical fluctuations of judicial discretion in federal sentencing theory). The Court, prior to 1987, sentenced a defendant convicted of a felony to a term of imprisonment between the statutory minimum (often no jail time) and maximum for the offense of conviction; thus, prior to the Guidelines, the court imposed a sentence anywhere from no jail time to twenty years in prison in the bank robbery. See example in supra text accompanying notes 1 2; see also 18 U.S.C 2113 (2002). 7. See U.S. SENTENCING COMM N, supra note 3.

5 2011] THE PENDULUM IN FEDERAL SENTENCING 473 that the Guidelines severely limit the court s discretion at sentencing. 8 Aside from its legislative goals of uniformity and proportionality, the mandatory federal sentencing scheme promoted predictability and informed decision making for the defendant. 9 The mandatory Guidelines effectively replaced binding plea agreements. Upon indictment, the defendant already faced his likely specific... sentencing range, 10 as set out in the Guidelines. Without a need to do so, the Guidelines then further marginalized the role of binding plea agreements through policy statements and commentary. 11 Binding plea agreements, as a result, became a stigmatized novelty in federal criminal practice. This valuable tool, as a result, has remained underutilized and unavailable to criminal defendants for more than twenty years. 12 In 2005, in United States v. Booker, the Supreme Court relegated the Guidelines to a mere sentencing consideration that is no longer mandatory on federal district judges. 13 The Court introduced a new process in federal sentencing. 14 The fall of the Guidelines may benefit defendants statistically, 15 yet the new process will never be as predictable and informative. 16 After more than twenty years of isolated and inconsistent use, binding plea agreements could again restore some predictability and informed decision making for the 8. See 18 U.S.C 3553(b) (2009). 9. See infra Part II.C (discussing predictability and informed decision making for the defendant as collateral benefits of the mandatory Guidelines). 10. See FED. R. CRIM. P. 11(c)(1)(C) (allowing the parties in a criminal case to negotiate a sentencing range before the Commission usurped that phrase in the Guidelines). 11. See U.S. SENTENCING COMM N, supra note 3, 6B1.2, cmt. background (defining the standard for judicial acceptance of a binding plea agreement and over-defining the justifiable reasons the court may rely upon); see also infra Part III.B (discussing binding plea agreements as meaningless under the Guidelines). 12. See infra Part III.A B (arguing that the mandatory Guidelines effectively replaced binding agreements and, through Guidelines policy statements, rendered these agreements meaningless for more than twenty years). 13. United States v. Booker, 543 U.S. 220, 226 (2005). 14. Id. at (setting out the new process of federal sentencing with advisory guidelines ). 15. See infra Part IV.C.2 and note 222 (discussing the favorable statistics for the defendant at sentencing post-booker). In 2009, district court judges imposed sentences below the applicable Guidelines range in more than forty-three percent of federal criminal cases and the average variance from the Guideline range in these cases has increased as well. See infra Part IV.C.2 and note See infra Part II.C (discussing predictability and informed decision making as collateral benefits of the mandatory Guidelines for the individual defendant).

6 474 WILLIAM MITCHELL LAW REVIEW [Vol. 37:2 defendant. 17 We do not have to be resigned to the above conversation as the post-booker norm. This article argues that in addition to the swing toward increased judicial discretion and overall lower sentences, the pendulum also can swing toward predictability and informed decision making for the defendant. The federal sentencing scheme must allow a defendant to pursue, negotiate, and contract for what the defendant believes is a uniform, proportional, and fair sentence. 18 Increased use of binding plea agreements in federal court could complement the progressive developments following Booker and restore some predictability and informed decision making to federal sentencing. 19 However, without significant rule, policy, and perception changes, like those proposed in Part VI of this article, binding plea agreements will continue to be disfavored by some district courts, 20 carry an unwarranted stigma among prosecutors, 21 and remain underutilized and largely unavailable to 17. See infra Part V (discussing a renewed role for binding plea agreements post-booker); infra Part VI (proposing rule, policy, and perception changes to encourage binding plea agreements in federal criminal practice and restore some predictability and informed decision making for the defendant). 18. See FED. R. CRIM. P. 11(c) (setting out some specific terms that may appear in federal plea agreements, including specific sentences and applicability of Guidelines provisions); see generally Michael D. Cicchini, Broken Government Promises: A Contract-Based Approach To Enforcing Plea Bargains, 38 N.M. L. REV. 159 (2008) (discussing that a solution to the problem would be to apply contract law principles consistently and fairly in enforcing plea agreements); Robert E. Scott & William J. Stuntz, Plea Bargaining As Contract, 101 YALE L.J (1992). 19. See infra Part V (proposing a renewed role for binding plea agreements post-booker). 20. See, e.g., United States v Seidman, 483 F. Supp. 156, 158 (D. Wis. 1980) ( At the outset, the Court would note that it never will accept a [binding] plea agreement. It is this Court s prerogative to determine the type of sentence that should be imposed upon a defendant for the offense of which he or she has been adjudged guilty. ); cf. United States v. Coney, 390 F. Supp. 2d. 844, 845 (D. Neb. 2005) ( When such a plea agreement smells too much like cow manure siphoned from a feedlot after a swampy, summer rain, judges should not pretend the odor is lilac. On the other hand, if the plea agreement stinks, but the stench is more like kitty litter than cow manure, a judge should hold his or her nose and move on. The trick is to discern the difference. ); see infra note 241 and accompanying text (demonstrating how district court judges may continue to disfavor binding plea agreements after the Supreme Court restored their discretion in Booker). In Coney, the district court judge ultimately accepted a binding plea agreement calling for a sentence below the Guidelines. See Coney, 390 F. Supp. 2d at 850 (finding justifiable reasons to accept the binding plea agreement). 21. See infra notes and (discussing Department of Justice protocol that discouraged the type of discounted binding plea agreements Congress intended when it enacted FED. R. CRIM. P. 11(c)(1)(C)).

7 2011] THE PENDULUM IN FEDERAL SENTENCING 475 criminal defendants. Part II of this article presents a brief historical background of federal sentencing and the policy goals behind the Guidelines implementation. Part III discusses the binding plea agreement under Rule 11 of the Federal Rules of Criminal Procedure. This Part also explains how the mandatory Guidelines effectively replaced the binding plea agreement and how the Commission and the Department of Justice (DOJ) have marginalized the use of this valuable tool for more than twenty years. Part IV summarizes the constitutional challenge to judicial findings of sentencing enhancements that was ultimately struck down in Booker, as well as the disconnect between the constitutional challenge and the Court s ultimate remedy of rendering the Guidelines advisory. This Part also discusses the current state of federal sentencing practice post-booker in terms of renewed judicial discretion, the benefit to defendants, and liberated prosecutors. Part V proposes that binding plea agreements should again become an integral part of federal practice. Last, Part VI proposes rule, policy, and perception changes that can assist in establishing a renewed role for binding plea agreements in federal criminal practice. These include proposed revisions to Rule 11 and the Guidelines treatment of binding plea agreements, a proposed model local rule, and sample plea agreement language, each designed to encourage the use of binding plea agreements after Booker. These changes are designed to promote predictability and informed decision making at sentencing. II. FEDERAL SENTENCING POLICY AND THE EVOLVING LANDSCAPE Keeping current with the changes in federal sentencing has been a challenging proposition since the late 1990s. 22 The evolution from pre-guidelines to post-guidelines federal sentencing can be described as coming full circle. 23 Yet, for the 22. See also infra Part II.D.2 (discussing how the Guidelines amplified episodes of prosecutorial discretion); Part III.B and note 90 (discussing sub rosa understandings in binding plea agreements); see also John Gleeson, The Sentencing Commission and Prosecutorial Discretion: The Role of the Courts in Policing Sentence Bargains, 36 HOFSTRA L. REV. 639, & n (2008) (discussing binding plea agreements that were sent underground by the mandatory Guidelines). 23. See Sandra D. Jordan, Have We Come Full Circle? Judicial Sentencing Discretion Revived in Booker and Fanfan, 33 PEPP. L. REV. 615, 650 (2006) (discussing Booker s almost twenty-year impact on federal sentencing); see also Douglas A. Berman,

8 476 WILLIAM MITCHELL LAW REVIEW [Vol. 37:2 individual defendant, the post-booker state of federal sentencing is lacking in consistency and predictability. 24 The seismic changes in Booker were progressive and positive developments. For purposes of this article, it is assumed that federal sentencing is more sophisticated, well-reasoned, and fair today than it was before the mandatory Guidelines. A. Before the Mandatory Guidelines Prior to 1987, federal district court judges imposed criminal sentences based on their own notions of fairness, compassion, and justice. 25 Because each judge was left to apply his or her own Reasoning Through Reasonableness, 115 YALE L.J. POCKET PART 142, 142 (2006) ( Booker and 3553(a) thus demand that federal sentencing judges exercise reasoned judgment by filtering the Guidelines advice through the provisions of 3553(a); by doing so, district judges avoid giving any particular judge-found fact a determinate role in calculating the sentence, and thereby avoid the constitutional problem identified in Booker. ); Jelani Jefferson Exum, The More Things Change: A Psychological Case Against Allowing the Federal Sentencing Guidelines to Stay the Same in Light of Gall, Kimbrough, and New Understandings of Reasonableness Review, 58 CATH. U. L. REV. 115, 118 (2008) (outlining the transition from sentencing in the discretion of the judges pre-guidelines to sentencing under the federal Sentencing Guidelines). 24. See David C. Holman, Death by a Thousand Cases: After Booker, Rita, and Gall, the Guidelines Still Violate the Sixth Amendment, 50 WM. & MARY L. REV. 267, 288 (2008) ( Because the presumption is a nonbinding appellate presumption, the sentencing judge is not required to impose a Guidelines sentence. The Court assumed that the district court judge may freely assign any sentence between the statutory minimum and maximum. If that is the case, then judge-found facts and the advisory Guidelines range are mere factors among many that judges may use to select a sentence. A judge could find facts that would triple a Guidelines sentence, but still permissibly sentence the defendant well below the Guidelines range. The constitutionality of the presumption of reasonableness completely depends on the truly advisory nature of the Guidelines. ); Jefferson Exum, supra note 23, at 124 ( Researchers have explained that [t]o the extent that judges use different judgmental anchors to make their sentencing decisions, the resulting sentences are likely to differ. (citing Birte Englich & Thomas Mussweiler, Sentencing Under Uncertainty: Anchoring Effects in the Courtroom, 31 J. APPLIED SOC. PSYCHOL. 1535, 1537 (2001))). 25. See S. REP. NO , at 31, 38 (1983); see also Brief for the United States Sentencing Commission as Amici Curiae Supporting Respondent, Claiborne v. United States, 551 U.S. 338 (2007) (No ), 2007 WL , at *1 ( Before the Act, each judge [was] left to apply his own notions of the purposes of sentencing. As a result,... Federal judges mete[d] out [a]... wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances. (quoting S. REP. NO , at 38) (alterations in original)); Christine DeMaso, Advisory Sentencing and the Federalization of Crime: Should Federal Sentencing Judges Consider the Disparity Between State and Federal Sentences Under Booker?, 106 COLUM. L. REV. 2095, 2099 (2006)

9 2011] THE PENDULUM IN FEDERAL SENTENCING 477 notions of the purpose of sentencing, the federal sentencing system exhibited an unjustifiably wide range of sentences to offenders... convicted of similar crimes. 26 Courts even differed about which considerations to apply at sentencing. Before the mandatory Guidelines, where charges were brought and which judge would preside were as important to the criminally accused as what charges were brought. 27 Federal sentencing lacked clear policy statements and considerations to guide lifetime-appointed judges when evaluating individual defendants and their offense conduct. Congress grew concerned with unfettered judicial discretion at sentencing. 28 The dangers of a sentencing scheme overly reliant on judicial discretion and without articulated goals were expressed in terms of unwarranted sentencing disparity and the need for uniformity. 29 Further, the larger public policy discussions about the utility and effect of punishment and the criminal justice system s role in serving those goals gained momentum during the 1970s and early 1980s. 30 Congress reacted to a negative public perception of the (discussing how pre-guidelines judges had nearly absolute and unreviewable sentencing discretion ). 26. See S. REP. NO , at 31, 38. Senator Ted Kennedy argued that sentencing guidelines were necessary because [f]ederal criminal sentencing is a national disgrace. Under current sentencing procedures, judges mete out an unjustifiably wide range of sentences to offenders convicted of similar crimes. 130 CONG. REC (1984). 27. See generally James M. Anderson, Jeffrey R. Kling & Kate Stith, Measuring Interjudge Sentencing Disparity: Before and After the Federal Sentencing Guidelines, 42 J.L. & ECON. 271 (1999). 28. S. REP. NO , at 38; see also Mistretta v. United States, 488 U.S. 361, 364 (1989) ( Congress delegated almost unfettered discretion to the sentencing judge to determine a convicted defendant s sentence, but a review of the legislative history strongly suggests that the sentencing disparity that Congress hoped to eliminate did not stem from prosecutorial discretion, but instead from unchecked judicial discretion in formulating sentences.); United States v. LaBonte, 70 F.3d 1396, 1400 (1st Cir. 1995) ( Three principal forces propelled the legislation: Congress sought to establish truth in sentencing by eliminating parole, to guarantee uniformity in sentencing for similarly situated defendants, and to ensure that the punishment fit the crime. ), rev d on other grounds, 520 U.S. 751 (1997). 29. See Sentencing Reform Act of 1984, Pub. L. No , Stat (1987), reprinted in 1984 U.S.C.C.A.N. 3182; S. REP. NO , at (collectively S. REP. NO ). 30. See generally FRANCIS A. ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL: PENAL POLICY AND SOCIAL PURPOSE (1981); NORVAL MORRIS, THE FUTURE OF IMPRISONMENT (1974).

10 478 WILLIAM MITCHELL LAW REVIEW [Vol. 37:2 federal system s lack of a sentencing scheme. 31 These influences eventually compelled Congress to draft legislation and overhaul federal sentencing. 32 Congress passed the most comprehensive federal sentencing legislation in history, the Sentencing Reform Act of 1984 (SRA), 33 and therein created the Commission. 34 As part of the SRA, Congress introduced into federal criminal jurisprudence statutes setting forth factors to be considered at sentencing and other issues related to sentencing. 35 The Commission was charged with fundamentally changing federal sentencing and the wide disparity of results throughout the federal system. 36 The Commission also published policy statements, additional sentencing considerations, and commentary. The culmination of the Commission s work was implemented as the Federal Sentencing Guidelines in The Guidelines incorporated and expanded the statutory sentencing factors 37 and, in turn, a corresponding statute made the Guidelines mandatory in federal court. 38 Congress expressly tasked the Commission with collecting federal sentencing data. The Commission s ongoing function was to assess and adjust the Guidelines accordingly. 39 The Commission did, and still does, just that See S. REP. NO , at See id. 33. See id. at See id U.S.C. 3553(a) (2009). 36. See S. REP. NO , at The Guidelines are the expert attempt of the Commission to weigh [the 3553(a) sentencing] factors in a variety of situations. United States v. Terrell, 445 F.3d 1261, 1265 (10th Cir. 2006). 38. Prior to Booker, federal criminal practitioners and district court judges paid little attention to the factors to be considered at sentencing in 18 U.S.C. 3553(a). This supports the premise that policy statements and goals would likely be ignored if they are not mandatory. Today, practitioners and judges recite and apply the factors in 3553(a) because appellate courts have remanded and held that sentences are procedurally unreasonable if the factors were not considered on the record. See infra note 222 (outlining the procedural and substantive components of the reasonableness review on appeal) U.S.C. 994(o) (2010). The Commission continues to collect data and draft modifications to the Guidelines. See, e.g., U.S. SENTENCING COMM N, supra note 1, 5H1.11 (stating the recently added sentencing considerations for military, civic, charitable, or public service); Notice of Final Priorities, 74 Fed. Reg , (Sept. 9, 2009) (stating the policy priorities identified in response to public comment on proposed priorities). 40. See, e.g., Mistretta v. United States, 488 U.S. 361, 370 (1989) ( In addition to the duty the Commission has to promulgate determinative-sentence guidelines, it is under an obligation periodically to review and revise the guidelines.

11 2011] THE PENDULUM IN FEDERAL SENTENCING 479 Congress did not envision, nor did the Commission set out to develop, the most complicated mathematical word problem known anywhere in criminal law. 41 Yet, once the Commission embarked upon the enormous task of reducing federal convictions into a complex matrix calculation, the result was inevitable. 42 The Commission, with some foresight and flexibility, designed its work to develop based upon appellate court interpretation and further legislative action. 43 The Commission s mandate and continued functions are designed to promote the goals of uniformity and proportionality at sentencing. 44 B. Uniformity and Proportionality Under the Mandatory Guidelines The federal criminal justice system needed a new sentencing scheme to promote uniformity 45 and proportionality. 46 The (quoting 28 U.S.C. 994(o) (1988))). 41. See, e.g., William W. Wilkins, Jr., The Federal Sentencing Guidelines: Striking an Appropriate Balance, 25 U.C. DAVIS L. REV. 571, 584 (1992). In the end, the Commission had to balance the comparative virtues and vices of broad, simple categorization with detailed, complex subcategorization and devise a system that could most effectively meet the statutory goals of sentencing reform. Id. at See, e.g., United States v. Barnes, 910 F.2d 1342, 1346 (6th Cir. 1990) (Ryan, J., concurring) (discussing the complex matrix of presumptions, rules, regulations, and arithmetical formulae that comprise the sentencing guidelines ). 43. See generally Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 HOFSTRA L. REV. 1, 2 (1988) ( The spirit of compromise that permeates the Guidelines arose out of the practical needs of administration, institutional considerations, and the competing goals of a criminal justices system.... ). 44. See JACK M. KRESS, PRESCRIPTION FOR JUSTICE: THE THEORY AND PRACTICE OF SENTENCING GUIDELINES 10 (1980); see also Michael M. O Hear, The Original Intent of Uniformity in Federal Sentencing, 74 U. CIN. L. REV. 749, 785 (2006) ( Rising departure rates [from the Commission s mandates] can thus fairly be characterized as an indication that many judges lack a strong commitment to the guidelines vision of uniformity. ); William W. Wilkins, Jr. & John R. Steer, The Role of Sentencing Guidelines Amendments in Reducing Unwarranted Sentencing Disparity, 50 WASH. & LEE L. REV. 63, 70 (1993) ( [T]he SRA seeks to reconcile competing goals of proportionality and uniformity. ). 45. See Kevin Cole, The Empty Idea of Sentencing Disparity, 91 NW. U. L. REV. 1336, 1336 (2004) ( [R]educing sentencing disparity... requires a coherent underlying theory of punishment, because disparity is not a self-defining concept. ); O Hear, supra note 44, at 750 ( [U]niformity seeks to eliminate unwarranted sentencing disparities, but also to provide for warranted disparities. The problem lies in distinguishing the warranted from the unwarranted. ); Julie R. O Sullivan, In Defense of the U.S. Sentencing Guidelines Modified Real-Offense System, 91 NW. U. L. REV. 1342, (1997) (defending the Guidelines while describing Congress s goals). 46. See 28 U.S.C 991(b)(1)(B) (2010); U.S. SENTENCING COMM N, supra note

12 480 WILLIAM MITCHELL LAW REVIEW [Vol. 37:2 Commission implemented the Guidelines to include definitive provisions and policy statements aimed at these goals. The policy statements and commentary aim to promote uniformity and proportionality in the federal system. 47 A uniform sentencing system promotes honesty, fairness, and justice. 48 Congress, at the same time, promulgated a statute that made the Guidelines binding on federal judges. 49 The mandatory nature of the Guidelines further supported the goals of uniformity and proportionality. 50 The mandatory Guidelines also leveled the disparity among jurisdictions and individual judges and curbed forum shopping and prosecutorial gamesmanship. 51 1, 1A1.3 (Congress set out three goals in the preamble to the Guidelines: (1) honesty in sentencing ; (2) uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders ; and (3) proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of differing severity. ); see also infra Part V.A (discussing how the Supreme Court, in formulating the reasonableness standard of review, has centered on uniformity, as opposed to predictability and informed decision making for the individual defendant). 47. See 28 U.S.C. 994(a)(2), 995(a)(1) (2010) (requiring the Commission to issue general policy statements regarding the application of the guidelines and to establish general policies... as are necessary to carry out the purposes of the legislation). 48. See 28 U.S.C 991(b)(1)(B) (2010) (stating that the purposes of the United States Sentencing Commission are to provide certainty and fairness in meeting the purposes of sentencing ); Marc L. Miller, Domination & Dissatisfaction: Prosecutors as Sentencers, 56 STAN. L. REV. 1211, 1217 (2004) (citing honesty as a goal in the federal sentencing scheme). 49. See 18 U.S.C. 3553(a) (2010). 50. Multiple sections of the Guidelines Manual outline mandatory minimum sentences. See U.S. SENTENCING COMM N, supra note 1, 2A3.6, 2B1.5, 2D21; see also O Hear, supra note 44, at 785 ( Still, while prosecutors may encourage or acquiesce, the decision to depart ultimately lies with the judge. Rising departure rates can thus fairly be characterized as an indication that many judges lack a strong commitment to the guidelines vision of uniformity. ) (citing Miller, supra note 48, at ). 51. See, e.g., United States v. Avalos, 541 F.2d 1100, (5th Cir. 1976) (noting the prosecution s deliberate attempt at gaining a tactical advantage through forum shopping); see generally Steve Y. Koh, Reestablishing the Federal Judge s Role in Sentencing, 101 YALE L.J. 1109, (1992) (discussing the prosecutorial gamesmanship inherent in gathering information for the court s consideration at sentencing and in U.S. Probation s presentencing reports).

13 2011] THE PENDULUM IN FEDERAL SENTENCING 481 The Commission crafted well-defined categories of offensive conduct, enhancements, and reductions 52 combined with narrowly constructed grounds for departure. 53 Similarly situated defendants, those who committed similar offenses with similar characteristics and having similar criminal histories were treated uniformly, or as consistently as possible, 54 throughout the country. 55 Amendments 52. See Comprehensive Crime Control Act of 1984, Pub. L. No , 217(a), 235(b)(1), 98 Stat. 1987, 2020, 2032 (1984); see also U.S. SENTENCING COMM N, supra note 1, chs. 2 3 (defining the many offense conduct and reduction calculations in the Guidelines). 53. The Guidelines define its created terminology, including offense level, reduction, enhancement, and departure. The court s narrow departure authority was set out in U.S. SENTENCING COMM N, supra note 1, 5K2.0 (Grounds for Departure); see also id. 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction), 5H1.6 (Family Ties and Responsibilities), 5H1.7 (Role in the Offense), 5H1.8 (Criminal History), 5K2.10 (Victim s Conduct), 5K2.12 (Coercion and Duress), 5K2.13 (Diminished Capacity), 5K2.20 (Aberrant Behavior). Prior to Booker, if the court departed from the guideline range, an appellate court could review the reasonableness of the departure. See 18 U.S.C (2010). 54. The United States Attorney s Manual describes how the United States Attorney, within his/her district, has plenary authority with regard to federal criminal matters. See U.S. ATTORNEY S OFFICE, DEP T OF JUSTICE, UNITED STATES ATTORNEY S MANUAL (1997) [hereinafter ATTORNEY S MANUAL], available at /index.html. This plenary authority creates legitimate, yet tangible, differences and the justified disparity in legitimate prosecutorial practices, or even a disparity in sentences resulting from prosecutorial practices, is rarely, if ever, a proper basis for departure from the Sentencing Guidelines range. See U.S. SENTENCING COMM N, supra note 1, 1B1.1. The U.S. Attorney and his or her delegates, through local rules and practices and internal policy, create different standards for declinations, see ATTORNEY S MANUAL at , charging thresholds or otherwise authorizing prosecution, id , post-indictment charging by information and dismissal of indictments, id , acceptance of responsibility reductions, id. 3B1.1, filing substantial assistance downward departure motions and valuing downward departure motions, id. 5K1.1, and filing special informations related to statutory enhancements, see 21 U.S.C. 851 (1970) (requiring filing of special information related to prior convictions); United States v. LaBonte, 520 U.S. 751, (1997) (describing a prosecutor s discretion to determine whether a particular defendant will be subject to the enhanced statutory maximum,... [such as an 851 enhancement, which is] similar to the discretion a prosecutor exercises when he decides what, if any, charges to bring against a criminal suspect ); ATTORNEY S MANUAL, supra, (requiring a formal approval system but deferring to the U.S. Attorney to establish the parameters of the system). 55. See 18 U.S.C. 3553(a)(6) (2010) (incorporating uniformity into the factors to be considered at sentencing); see also Michael M. O Hear, The Duty to Avoid Disparity: Implementing 18 U.S.C. 3553(a)(6) After Booker, 37 MCGEORGE L. REV. 627, 629 (2006) ( In the post-booker world, the most common use of [18 U.S.C. 3553](a)(6) has perhaps been as a basis for reducing or eliminating the

14 482 WILLIAM MITCHELL LAW REVIEW [Vol. 37:2 to the Guidelines, appellate decisions, and sentencing proceedings interpreting the Guidelines discussed specific case facts and offender characteristics in terms of these goals. 56 In practice, however, the mandatory Guidelines were not without loopholes that undercut true uniformity. 57 C. Predictability and Informed Decision Making Predictability and informed decision making served as oftoverlooked collateral benefits of the mandatory federal sentencing scheme. 58 The Supreme Court has discussed federal sentencing in terms of its predictability during the mandatory Guidelines era. 59 The Guidelines were inflexible, draconian, and skewed toward harsher punishments; yet, they were predictable as to the outcome and, for better or worse, provided valuable information to the defendant early in a criminal case. The predictability and information inherent to the Guidelines led to more informed decisions about guilty pleas, meaningful cooperation, and the risk differences in sentences that would otherwise be imposed on co-defendants pursuant to the Guidelines. ); DeMaso, supra note 25 (noting that prior to the Guidelines, judges had nearly absolute and unreviewable sentencing discretion ). 56. See, e.g., United States v. Mejia, 953 F.2d 461, (9th Cir. 1991) (denying the defendant s motion for downward departure based upon proportionality with co-defendants and holding that [b]asic notions of fairness dictate that defendants should be sentenced in proportion to their crimes.... [Yet, a] downward departure to correct sentencing disparity brings a defendant s sentence more into line with his or her codefendant s sentence, but places it out of line with sentences imposed on all similar offenders in other cases ). 57. See infra Part II.D (discussing the loopholes and lack of uniformity in the federal sentencing system under the Guidelines and in matters left to prosecutorial discretion). See generally Jeffery T. Ulmer, The Localized Uses of Federal Sentencing Guidelines in Four U.S. District Courts: Evidence of Processual Order, 28 SYMBOLIC INTERACTION 255 (2005), available at /papers.cfm?abstract_id= (exploring the localized meaning of provisions in the Guidelines, such as departures for substantial assistance to law enforcement and reductions for acceptance of responsibility ). 58. See Daniel Ryan Koslosky, Comment, Constitutional Law: Predictability as Fairness and the Possible Return to Federal Indeterminate Sentencing, 57 FLA. L. REV. 999, (2005) (analyzing Booker and noting that the decision allows defendants to better predict the term of incarceration that they face at the commencement of the criminal proceeding ). 59. See, e.g., Koon v. United States, 518 U.S. 81, 113 (1996) (stating that the pre-guidelines system of indeterminate sentencing lacked uniformity, predictability, and a degree of detachment ); Mistretta v. United States, 488 U.S. 361, 366 (1989) (discussing how the pre-guidelines federal sentencing scheme led to widespread dissatisfaction with the uncertainties regarding federal sentencing).

15 2011] THE PENDULUM IN FEDERAL SENTENCING 483 associated with trial. 60 The Guidelines also permitted the defendant to be involved in deciding his or her own fate. The mandatory Guidelines empowered defendants with more pointed advice from counsel and, accordingly, more informed decision making. A defendant pleading guilty during the mandatory Guidelines era had a firm understanding about what lie ahead at sentencing. The individual defendant valued the benefits of predictability and informed decision making as much as, if not more than, Congress s and the Commission s goals of uniformity and proportionality. The loss of benefits like predictability and the defendant s information at sentencing may be an ancillary cost of the progressive developments in federal sentencing. Some might opt for overall lower sentences instead of generalized notions of predictability and informed decision making. The argument begs the question: can judicial discretion and a more individualized federal sentencing scheme coexist with the defendant s need for predictability and informed decision making at sentencing? As argued in this article, through the use of binding plea agreements, the answer is yes. 61 D. One Size Fits All Did Not Fit The mandatory Guidelines had an adverse impact on all involved in a federal sentencing proceeding. 62 The district court 60. In the federal criminal system, sentencing and cooperation are intertwined throughout the procession of a case. See ATTORNEY S MANUAL, supra note 54, (listing general guidelines for federal prosecution and declination of prosecution, including the person s willingness to cooperate in the investigation or prosecution of others and the probable sentence or other consequences if the person is convicted); see also George C. Harris, Testimony for Sale: The Law and Ethics of Snitches and Experts, 28 PEPP. L. REV. 1, 9, 13 (2000) (equating cooperation agreements to government bribery). 61. See infra Part V (discussing the renewed role for binding plea agreements to restore the predictability and informed decision making lost after Booker). 62. The Guidelines significantly curtailed judicial discretion at sentencing. The sentencing court exercised its discretion within a range of six or twelve months in most cases, as compared to a span of ten-to-twenty years established by statute. See U.S. SENTENCING COMM N, supra note 1. The Guidelines similarly impacted prosecutorial discretion in most matters related to sentencing. After the decisions related to charging and potential cooperation, the federal prosecutor played a minimal role in the sentencing of most defendants. Id. Most importantly, the Guidelines prescribed an outcome for the individual defendant based upon his offense conduct and criminal history, and with less attention to his individual circumstances. See supra note 53 (listing some of the individual

16 484 WILLIAM MITCHELL LAW REVIEW [Vol. 37:2 judge, prosecutor, and individual defendant each had their role significantly limited by the mandatory Guidelines. 63 A one size fits all approach unfairly simplified and categorized the difficult task of sentencing individual defendants. 64 The Guidelines dictated the process and hamstrung the parties for almost twenty years while mandatory and, to some degree, still do so today. 65 With a limited role in the plea and sentence federal system, the balance of the district court s impressions, compassion, or ire about a case or an individual defendant were pigeon-holed into its discretion to sentence within a relatively small range of options. 66 The Guidelines severely usurped most post-indictment situations reserved for prosecutorial discretion, 67 and, in turn, abuses of considerations that did not warrant a downward departure). 63. See supra Part I. The defendant s role at sentencing is not that far removed from the Guidelines conversation. See supra Part I.A. The defendant s conduct and criminal history produced a numerical range and the vast majority of imposed sentences followed that mathematical guidance. Id. 64. Compare United States v. Rausch, 570 F. Supp. 2d 1295, 1305 (D. Colo. 2008) ( The criteria also point to individuated considerations: No one size fits all. The object of this balancing process is to achieve not a perfect or a mechanical sentence, but a condign one-one that is decent, appropriate and deserved under all attendant circumstances. ) (emphasis added), with United States v. Quigley, 30 F.3d 135 (Table), Nos , , 1994 WL , at *2 (6th Cir. Aug. 1, 1994) (describing how the defendant, who had no criminal history, [was] unfortunate enough to have committed a crime that lump[ed] him together with more dangerous and hardened criminals, [making him] suffer the consequences of one-size-fits-all sentencing ). Courts often discussed one-size-fits-all when considering downward departures under Guidelines section 5K2.0, Grounds for Departure, because the Guidelines provision was too sweeping in the case at issue. See, e.g., United States v. Marquez-Gallegos, 217 F.3d 1267, (10th Cir. 2000) (citing U.S. SENTENCING COMM N, supra note 1, 5K2.0) ( Where the factor in issue is one already taken into account by the applicable Guideline and adjustments, departure from the Guideline is permissible only if that factor is present in a manner or degree unusual enough to distinguish the case from the heartland of cases covered by the Guideline. ). 65. See U.S. SENTENCING COMM N, supra note 1. The Sentencing Reform Act of 1984, part of the Comprehensive Crime Control Act of 1984, provided for the development of modern guidelines that will further the basic purposes of criminal punishment: deterrence, incapacitation, just punishment, and rehabilitation. See 18 U.S.C. 3551, 3553 (2006); U.S. SENTENCING COMM N, supra note 1, 1, pt. A, subpt. 1. The Act delegates broad authority to the Commission to review and rationalize the federal sentencing process. Id. 66. The range of an applicable Guidelines sentence for Zone D, which addresses the most serious offenses, spans from twenty to thirty-three percent of the high end of the guideline range. U.S. SENTENCING COMM N, supra note 1, 5, pt. A. However, the percentage is only a fraction of the range between the statutory minimum and maximum. See id. 67. See Koh, supra note 51, at (1992) (discussing a gamesmanship in gathering information for the court s consideration at sentencing proceedings

17 2011] THE PENDULUM IN FEDERAL SENTENCING 485 prosecutorial discretion undermined the sentencing goals of uniformity and proportionality. 68 The federal sentencing scheme was condemned as overly formulaic, inflexible, and harsh. 69 A change to the mandatory Guidelines may have been unavoidable. 1. Limited Judicial Role in the Plea and Sentence Federal System The district court s limited role in most criminal cases bears on two issues applicable to this article. First, the limited role explains why some judges may abhor policies or practices that rein in their discretion, such as mandatory sentencing schemes and binding plea agreements. 70 Second, because judges are prohibited by statute from having a role in plea negotiations, the parties undertake a bit of a mystery in pursuing a binding plea agreement that must be accepted by the court without knowing the court s standard for acceptance or personal feelings about determinative agreements. 71 The limited judicial role also may best explain why the Court rendered the Guidelines advisory in Booker. 72 Federal district court judges have long presided over a predominantly criminal docket, wherein ninety-five percent of the cases are resolved by guilty plea. 73 After the Supreme Court s and in pre-sentencing reports); Notes, Procedural Due Process at Judicial Sentencing for Felony, 81 HARV. L. REV. 821, 837 (1968) (discussing how the information before the court at sentencing comes almost exclusively from prosecutors, who cannot be expected to be disinterested ). 68. E.g., United States v. Stanley, 928 F.2d 575, 583 (2d Cir. 1991) (noting that because judges are prevented from departing from the Guidelines, discretion is transferred to prosecutors); United States v. Kikumura, 918 F.2d 1084, 1119 (3d Cir. 1990) (Rosenn, J., concurring) (discussing how the Guidelines allow for prosecutors manipulation of... charge and sentencing ). 69. See Michael Tonry, The Functions of Sentencing and Sentencing Reform, 58 STAN. L. REV. 37, 46 (2005) (criticizing sentencing schemes like the Guidelines that guide judges to impose sentences calculated by means of mechanical scoring systems... rather than by looking closely at the circumstances of individual cases ). 70. See Michael M. O Hear, Plea Bargaining and Procedural Justice, 42 GA. L. REV. 407, (2008). 71. See FED. R. CRIM. P See United States v. Booker, 543 U.S. 220, 226, 245 (2005). 73. See 2005 ANN. REP. ADMIN. OFFICE OF THE U.S. COURTS tbl.d-4, at 245 (2006), available at (reporting 77,339 convictions, with 74,024 resulting from guilty pleas). Although reliable statistical information is limited, one recent estimate indicated that guilty pleas account for the disposition of as many as 95% of all criminal cases. FED. R. CRIM. P. 11 Advisory Comm. Notes, The great majority of all defendants against whom indictments or informations are filed in the federal courts plead guilty. Only a comparatively small number go to trial. Id. at Advisory Comm. Notes, 1966.

18 486 WILLIAM MITCHELL LAW REVIEW [Vol. 37:2 decision in Santabello, 74 the government and the defense were encouraged to openly negotiate and contract for mutually favorable terms at the time of a guilty plea. 75 Although federal criminal practice was a plea and sentence system, district court judges participated in plea discussions and enjoyed true discretion at sentencing. In the 1970s, Congress, after some debate, 76 decided that in federal court, unlike prior practice and most state court systems, the judge would have no role in plea discussions. 77 Federal Rule of Criminal Procedure 11 (Rule 11) covered the parameters of a guilty plea colloquy with the defendant and clearly delineated the court s limited role in plea negotiations. 78 Congress provided that 74. Santobello v. New York, 404 U.S. 257 (1971). 75. See id. at ( The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known. ). 76. See FED. R. CRIM. P. 11 Advisory Comm. Notes, 1974 ( It has been stated that it is common practice for a judge to participate in plea discussions. ) (citing D. NEWMAN, CONVICTION: THE DETERMINATION OF GUILT OR INNOCENCE WITHOUT TRIAL 32 52, (1966)); Dominick R. Vetri, Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U. PA. L. REV. 865, 891, 905 (1964); cf. ABA COMM. ON PROF L ETHICS, INFORMAL OP. C-779 (1965) ( The judge, of course, should not be a party to any arrangements in advance for the determination of sentence whether as a result of a guilty plea or a finding of guilty based on proof. ). 77. See FED. R. CRIM. P. 11 Advisory Comm. Notes, 1974 (citing ABA STANDARDS RELATING TO PLEAS OF GUILTY 3.3(a) (Approved Draft 1968)) (introducing subdivision (e)(1) prohibiting the court from participating in plea discussions); Scott v. United States, 419 F.2d 264, 278 (D.C. Cir. 1969) (holding that trial judges should neither participate in plea bargaining nor entice defendants to plead guilty with promises of a lenient sentence). But see FED. R. CRIM. P. 11 Advisory Comm. Notes, 2002 (citing United States v. Torres, 999 F.2d 376, 378 (9th Cir. 1993)) (noting the practice and concluding that the presiding judge had not participated in a plea agreement that had resulted from discussions involving another judge and stating that [t]he Committee considered whether to address the practice in some courts of using judges to facilitate plea agreements. ). 78. See FED. R. CRIM. P. 11(c)(1) ( The court must not participate in these discussions. ); see also Virgin Islands v. Walker, 261 F.3d 370, 376 (3d Cir. 2001) (citing Longval v. Meachum, 651 F.2d 818, 821 (1st Cir. 1981)) (stating that [a] judge who participates in plea bargaining is no longer a judicial officer or a neutral arbiter. Rather, he becomes or seems to become an advocate for the resolution he has suggested to the defendant. ); United States ex rel. Elksnis v. Gilligan, 256 F. Supp. 244, 254 (S.D.N.Y. 1966) (discussing the unequal positions of the judge and the accused ). But see Colin Miller, Anchors Away: Why the Anchoring Effect Suggests that Judges Should Be Able To Participate in Plea Discussions 3 (John Marshall Law School, working paper series, 2010), available at (arguing that judicial participation in plea discussions would produce more reasonable plea agreements than those that begin with unnecessarily high initial offers from the

19 2011] THE PENDULUM IN FEDERAL SENTENCING 487 the court must accept or reject guilty pleas and negotiated plea agreements; yet, due to the imbalance of a lifetime-appointed federal judge relative to a criminal defendant, the court shall not be part of the discussion. 79 Presiding over fewer criminal trials and disinvited from plea discussions, the district court served its most important function at sentencing. 80 Following the introduction of the Guidelines, federal court remained a plea and sentence practice. District court judges still had no role in plea discussions. 81 The mandatory Guidelines reduced sentencing to a ceremony and severely limited the court s role in the phase in which it was most involved. Specific provisions of the Guidelines 82 and the mandatory scheme s predictability further incentivized guilty pleas. 83 Yet the central functions of federal sentencing were outsourced to the Commission for creating the Guidelines 84 and to the U.S. Probation and Pretrial Services for running the initial calculations. 85 government). 79. See FED. R. CRIM. P. 11(c)(1). 80. Many district courts delegate the ministerial duties of handling guilty pleas in federal courts. Some still argue the need for a judicial role in plea bargaining. See Susan R. Klein, Enhancing the Judicial Role in Criminal Plea and Sentence Bargaining, 84 TEX. L. REV. 2023, (2006) (coining most plea bargaining as biased and coercive ). It was the potential for judicial coercion that led Congress to carve the court out from its function in federal plea bargaining. See FED. R. CRIM. P. 11, Advisory Comm. Notes, FED. R. CRIM. P. 11(c)(1). 82. The Guidelines codified a preexisting principle in federal criminal practice: if a defendant pleaded guilty and spared the time and resources of a trial, then the system would treat him more favorable at sentencing. See U.S. SENTENCING COMM N, supra note 1, 3E1.1 (rewarding the defendant who clearly demonstrates acceptance of responsibility for his offense and further rewarding the defendant who has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently ). 83. According to the U.S. Department of Justice, 94.1% of federal prosecutors cases resolved in 2009 ended with a conviction. Feds Conviction Rate Bad Sign For Blago, WLS-TV, Aug. 4, 2010, (last visited Dec. 19, 2010). 84. See 28 U.S.C. 994(a)(1) (2009). 85. See 28 U.S.C. 995(a)(9), 995(a)(18) (2009) (directing the Commission to monitor the performance of probation officers work with the Guidelines and to devise and conduct periodic training programs of instruction in sentencing techniques for judicial and probation personnel and others).

20 488 WILLIAM MITCHELL LAW REVIEW [Vol. 37:2 2. Prosecutorial Discretion The mandatory Guidelines caused several problems related to prosecutorial discretion. First, the mandatory Guidelines significantly limited the federal prosecutor s discretion at sentencing. 86 Second, the Guidelines could not address the lack of uniformity in the few decisions that remained within the discretion of the prosecutor. 87 Lastly, the mandatory sentencing scheme exacerbated abuses of prosecutorial discretion 88 and, in turn, government discretion sometimes undermined the sentencing goals of uniformity and proportionality. 89 The mandatory Guidelines, along with DOJ protocol, 90 limited 86. After indictment and plea or trial, the federal prosecutor is confined to the same narrow Guidelines range based upon the offense conduct charged and the criminal history of the defendant. See Memorandum from Attorney Gen. John Ashcroft on Dep t Policy and Procedures Concerning Sentencing Recommendations and Sentencing Appeals to All Federal Prosecutors (July 28, 2003) [hereinafter Ashcroft July 2003 Memo], available at /public.nsf/legislation/ci_03_32/$file/ag_guidance_stcg_recs.pdf (requiring prosecutors to recommend a sentence to the court within the Guidelines and to oppose all motions for downward departure filed by the defendant or by the court sua sponte). 87. See Rebecca Krauss, The Theory of Prosecutorial Discretion in Federal Law: Origins and Development, 6 SETON HALL CIRCUIT REV. 1 (2009) (discussing prosecutorial discretion as the central component in federal criminal practice, yet not subject to judicial review); cf. Gleeson, supra note 22, at 639 (advocating for binding plea agreement determinations to be matters within prosecutorial discretion). 88. The Guidelines treated all offense conduct mathematically, even if the charges arose from abuses of prosecutorial discretion. See, e.g., United States v. Wilson, 262 F.3d 305, 314 (4th Cir. 2001) (considering vindictive prosecution claims occurring after the defendant exercises his right to appeal). 89. See infra notes 102, 106 (describing instances when prosecutorial discretion served to negotiate the guidelines, as opposed to operate within them). 90. See Ashcroft July 2003 Memo, supra note 86 (setting out the policies and procedures for sentencing recommendations, hearings, and appeals); Memorandum from Attorney Gen. James Comey on Dep t Policies and Procedures Concerning Sentencing to All Federal Prosecutors (Jan. 28, 2005) [hereinafter Comey 2005 Memo], available at /Files/Comey%20Memo% ashx (echoing similar guidance); cf. Memorandum from Attorney Gen. Eric Holder on Dep t Policy on Charging and Sentencing to All Federal Prosecutors (May 19, 2010) [hereinafter Holder 2010 Memo], available at (discussing rare cases in which sentences outside of the Guidelines may be appropriate); see also the PROTECT Act, Pub. L. No , 401(m)(2)(A), 117 Stat. 650, 675 (2003) (directing the Sentencing Commission to review the grounds for downward departure); Memorandum from Attorney Gen. John Ashcroft on Dep t Policy Concerning Charging Criminal Offenses, Disposition of Charges, and Sentencing to All Federal Prosecutors (Sept. 22, 2003) [hereinafter Ashcroft

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